0120110622
09-12-2012
Paul M. Cook, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.
Paul M. Cook,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120110622
Hearing No. 532-2009-00140X
Agency No. 08-05-107
DECISION
On October 4, 2010, Complainant filed an appeal from the Agency's September 15, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFYS the Agency's final order.
ISSUES PRESENTED
Whether the Agency properly awarded relief upon finding that Complainant was discriminated as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Mine Safety and Health Specialist, GS-034309/11/12, under Vacancy Announcement No. MSHA-07-046-DEU. Complainant was not selected for the position. On August 12, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical) when (1) in May 2007, he applied for the position of Mine Safety and Health Specialist, GS-034309/11/12, advertised under Vacancy Announcement No. MSHA-07-046-DEU, but was not selected.
In its September 12, 2008 final decision (FAD), the Agency dismissed the complaint on the grounds of untimely EEO Counselor contact. Complainant appealed the FAD to the Commission. In Cook v. Dep't of Labor, EEOC Appeal No. 0120090333 (Feb. 24, 2009), the Commission reversed the Agency's FAD and remanded the complaint for an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 11, 2010, and issued a decision on July 30, 2010.
The AJ found that Complainant established that he was subjected to discrimination based on perceived disability when he was not selected for the position at issue. In order to provide full relief to Complainant, the AJ ordered the following:
1. Complainant to be awarded the next available position of Mine Safety and Health Specialist (Training). GS-l1;
2. back pay-with interest, from September 2, 2007 until the date Complainant is selected for or declines a position of Mine Safety Health Specialist (Training), GS-l1;
3. posting of a notice to employees in accordance with 29 C.F.R. �1614.501(a)(1);
4. training provided to the relevant management officials on the ADA and consideration by the Agency of disciplinary action against these individuals;
5. pay Complainant $2,000 in non-pecuniary damages.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant was discriminated against as alleged. In so adopting, the Agency informed Complainant that it would do the following:
1) award him the next available position of Mine Safely and Health Specialist (Training), GS-11;
2) pay back pay, with interest, from September 7, 2007 until Complainant is selected for or declines a position of Mine Safety and Health Specialist (Training), GS-11;
3) post and maintain for a period of not less than sixty (60) calendar days at the Agency's Columbus, Ohio office, a notice relating to the finding of discrimination in conformity with 29 C.F.R. � 1614.501;
4) provide two training courses related to the Americans with Disabilities Act (ADA) to the relevant management officials;
5) determine whether disciplinary action against the relevant management officials is appropriate; and
6) pay to Complainant $2,000 in non-pecuniary damages.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, in large part, that he is also entitled to other benefits of employment during the period at issue, as well as the specifics of his back pay award. Specifically, Complainant argues that he should be provided with the pay raises he would have received had he been employed; he requests SSA and FERS payments; all federal and state taxes deducted; accumulated sick and annual leave; starting at the GS-12-3 position; all interest paid; TSP payments; per diem; FRS payments made; that his federal retirement and service record reflect 3 years of prior service as well as the period at issue in this case; and retirement from American Electric Power to not be included as wages and not deducted from the back pay amount.
The Agency argues that Complainant failed to provide it with any appeal brief. The Agency also argues that Complainant is not entitled to per diem as he requested to the Agency prior to filing this appeal.
ANALYSIS AND FINDINGS
Because Complainant failed to provide the Agency with a copy of his appeal brief, we decline to address the specific matters that he raised on appeal.
Nevertheless, we note that neither the AJ nor the Agency's final order specify that, in addition to back pay, Complainant is entitled to all benefits he would have received had the discriminatory act not take place. When discrimination is found, an Agency must provide the affected employee with a remedy that constitutes full, make-whole relief in order to restore the employee, as nearly as possible, to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
As part of make whole-relief, Complainant is entitled to all employment benefits and privileges that he would have been entitled to had no discrimination occurred. Accordingly, we modify the Agency's final order to include that Complainant is entitled to all benefits of employment from the date of the discriminatory act to the date he accepts or rejects the offer of employment. The Agency is required to determine the benefits due to Complainant when it is computing the award. Because the record is devoid of any evidence that Complainant has received the relief provide in the Agency's final order, we shall repeat the appropriate language below in the modified order.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order. The Agency is required to comply with the order below.
ORDER (D0610)
The Agency, to the extent it has not already done so, is ordered to take the following remedial action within ninety (90) calendar days of this decision becoming final:
1) The Agency, retroactive to September 7, 2007, shall award Complainant the next available position of Mine Safely and Health Specialist (Training), GS-11;
2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3) The Agency shall prominently post and maintain for a period of not less than sixty (60) calendar days at the Agency's Columbus, Ohio office, a notice relating to the finding of discrimination in conformity with 29 C.F.R. � 1614.501. The notice shall indicate that it is being posted pursuant to this decision;
4) No later than sixty (60) calendar days from the date of this decision, the Agency shall provide two training courses related to the Americans with Disabilities Act (ADA) to [relevant management officials];
5) No later than sixty (60) calendar days from the date of this decision, the Agency shall determine whether disciplinary action against [relevant management officials] is appropriate; and
6) The Agency shall pay to Complainant $2,000 in non-pecuniary damages.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__9/12/12________________
Date
2
0120110622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110622